The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 3907 of 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Prasanta Kumar Pradhan …. Petitioner -versus- The Chancellor, OUAT, BBSR & Ors. …. Opposite Parties For Petitioner : along with Mr. S. Sekhar, Advocate Mr. B. Routray, Sr. Advocate For Opp. Parties : Mr. S. Das, Advocate (Opp. Party Nos. 2 & 3) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 23.07.2025 & Date of Judgment: 23.07.2025 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. B. Routray, learned Sr. Counsel appearing for the Petitioner along with Mr. S. Sekhar, learned counsel, Mr. S.K. Jee, learned Addl. // 2 //
Legal Reasoning
the University, pursuant to the order passed by this Court in W.P.(C) No. 2714 of 2007 on 25.09.2008 and subsequent order passed in the Contempt Petition, Petitioner vide Notification dtd.19.05.2009 under Annexure-3 series was appointed as against the post of Director of Physical Plants w.e.f. the date he takes over the charge. 4.1. It is contended that in terms of such notification issued by the University on 19.05.2009 under Annexure-3 series, Petitioner took over the charge of the post in question, i.e. Director of Physical Plants and after Page 2 of 12 // 3 // taking such charge, his pay was fixed vide office order dtd.27.06.2009 under Annexure-5. In the said order Petitioner was allowed with the scale of pay of Rs.15,600/- - Rs. 39,100/- with Grade Pay of Rs.6,600/-. It is contended that while in receipt of the salary in the aforesaid scale of pay so sanctioned vide office order dtd.27.06.2009, Petitioner was made to retire compulsorily in a proceeding vide office order dtd.22.04.2019 under Annexure-6 series. 4.2. It is contended that challenging such order passed by the University on 22.04.2019 and further order passed on 29.05.2019 Petitioner has filed a writ petition in W.P.(C) No. 13564 of 2019, which is subjudice. It is however contended that since Petitioner while continuing in terms of order dtd.19.05.2009 and pay fixation made on dtd.27.06.2009 vide Annexure-3 series and 5, retired from his services compulsorily vide order dtd.22.04.2019, while sanctioning the provisional pension vide office order dtd.26.08.2022 under Annexure-7, his scale of pay could not have been taken in the scale of pay prescribed as against the post of Asst. Engineer and by showing his last pay drawn at Rs. 17,310 with G.P. of Rs. 4,600/-. 4.3. It is contended that once Petitioner in terms of the order passed by this Court in W.P.(C) No. 2714 of 2007 was appointed as against the post of Director of Physical Plants vide order dtd.19.05.2009 and his pay was fixed accordingly vide order dtd.27.06.2009, while in receipt of the said scale of pay, he was made to retire on the ground of compulsory retirement w.e.f.22.04.2019, while sanctioning his provisional pension, his scale of pay could not have been taken otherwise than sanctioned vide office order dtd.27.06.2009 under Annexure-5. It is also contended that Page 3 of 12 // 4 // subsequent to sanction of the scale of pay vide order dt.27.06.2009, revision of scale of pay was also not extended in terms of subsequent ORSP Rules. It is accordingly contended that the provisional pension fixed vide office order dtd.26.08.2022 taking his scale of pay as applicable to the post of Asst. Engineer is not sustainable in the eye of law and it requires a modification. Not only that without prejudice to his claim as made in W.P.(C) No. 13564 of 2019, Petitioner’s pension is required to be calculated and drawn in terms of Rule 47 of OCS (Pension) Rules, 1992. Rule 47 of the Rules reads as follows:- “47. Amount of pension (1) The amount of pension that may be granted shall be determined by the length of completed six monthly periods of service rendered by the retired Government servant. (2)(a) [In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of twenty five years shall be entitled for pension at the rate of 50% of the last emoluments drawn by him on the date of his retirement w.e.f. dtd. 01.12.2008. Provided that in case of Judicial Officers of the State retiring in accordance with the provisions of these rules after completing qualifying service of twenty years will be entitled for pension at the rate of 50% of the last emoluments drawn by him on the date of his retirement w.e.f. dtd.01.01.2006. Explanation- The pay notionally fixed in any case in favour of an employee after his retirement shall be taken into consideration for the purpose of retirement benefit. (b) [In case of a Government Servant retiring before completion of twenty five years of qualifying service, but after completion of ten years of service, the amount of pension shall be proportionate to the amount of pension admissible under clause (a) of sub- rule (2) and in no case the amount of pension shall be less than the minimum amount of pension of Rs. 3500/- or as shall be fixed by Government from time to time and Page 4 of 12 // 5 // maximum up to 50% of the highest pay and Grade Pay admissible to the Government employee w.e.f. dtd.01.12.2008. Provided that in case of Judicial Officers of the State retiring before completion of twenty years of qualifying service, but after completion of ten years of service, the amount of pension shall be proportionate to the amount of pension admissible under clause (a) of sub-rule (2) and in no case the amount of pension shall be less than the minimum amount of pension of Rs. 3500/- or as shall be fixed by the Government from time to time and maximum up to 50% of the highest pay admissible to the State Judicial Officer w.e.f. dtd. 01.01.2006.] (c) Notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall be less than the amount of family pension admissible under Clause (c) of Sub-rule (2) of Rule 56. (3) In calculating the length of qualifying service, a fraction of a year equal to three months and above but less than six months shall be treated as a completed one-half year and the period of nine months and above shall be reckoned as two-half years. 4) (a) The amount of pension finally determined under Clause (a) or Clause (b) of Sub-rule (2) shall be expressed in whole rupees and where pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee. (b) Where the pension paid for a part of the month due to the death of the pensioner or pension paid for a part of the month to the Government servant for any reason if worked out in fraction of a rupee, the said pension may be rounded off to the next higher rupee. 1[(c) In addition to the pension calculated above, the quantum of pension payable to the old pensioners shall be increased w.e.f. dtd.01.12.2008 In case of State Government employees and w.e.f. dtd.01.01.2006 in case of State Judicial Officers after completion of eighty years of age or above in the following manner:- Age of pensioner Additional quantum of Pension Page 5 of 12 // 6 // From 80 years (on completion) to less than 85 years -20% of the basic pension. From 85 years (on completion) to less than 90 years -30% of the basic pension. From 90 years (on completion) to less than 95 years -40% of the basic pension. From 95 years (on completion) to less than 100 years - 50% of the basic pension. 100 years (on completion) or more - 100% of the basic pension. (d) The pension sanctioning Authorities shall indicate the date of Birth and the age of the pensioner in the pension sanction form as prescribed under these rules to facilitate payment of additional pension by the pension disbursing authority as soon as it becomes due. (e) The amount of additional pension shall be shown distinctly in the pension payment order indicating the Basic Pension + Additional Pension and date of commencement of the additional amount. (f) For calculation of additional pension the age of the pensioner shall be reckoned from the first day of the month even if the date of birth of the pensioner falls in the middle of the month. (i.e., in case the pensioner completes 80 years of age on dtd.27.03.2014 his/her age shall be reckoned as 80 years w.e.f. dtd.01.03.2014. (g) In case of pensioners or family pensioners who are in receipt of more than one pension or family pension the minimum ceiling limit shall apply to the total of all pensions taken together and where the consolidated pension of family pension taken together is less than the minimum pension as is fixed by the Government, the same shall be stepped up to the level of the minimum pension. If the consolidated pension is inclusive of commuted value of pension, the commuted person shall be deducted for making payment of monthly pension.] 5) (i) ’[In the case of a Government Servant retiring in accordance with the provisions of these rules before completion of the minimum qualifying service of ten years shall not be entitled for pension, but he shall be entitled to service gratuity to be paid at a uniform rate of half month’s emoluments for every completed six monthly period of service.] Page 6 of 12 // 7 // (ii) The amount of service gratuity as finally calculated shall be rounded off to the next higher rupee.” 5. Mr. S. Das, learned counsel appearing for the university on the other hand contended that even though vide order dtd.19.05.2009 Petitioner was appointed as Director, Physical Plant and his pay was accordingly fixed as against the said post vide order dt.27.06.2009, but the original order passed by this Court on 25.09.2008 in W.P.(C) No. 2714 of 2007 is the subject matter of challenge before the Hon’ble Apex Court in Civil Appeal No. 8513 of 2009. 5.1. It is contended that since very order passed by this Court which was though implemented vide notification dtd.19.05.2009 is the subject matter of challenge before the Apex Court in Civil Appeal No. 8513 of 2009, the scale of pay allowed in favour of the Petitioner as against the post of Director of Physical Plants vide order dtd.27.06.2009 was not taken into consideration while sanctioning the provisional pension in favour of the Petitioner. 5.2. Since the dispute has not yet attained finality and it is subjudice before the Apex Court, while sanctioning the provisional pension, scale of pay applicable to the post of Asst. Engineer from which the Petitioner was so appointed vide order dt.19.05.2009 was taken into consideration. It is accordingly contended that since the issue is pending before the Apex Court in Civil Appeal No. 8513 of 2009, unless and until the said appeal
Arguments
Govt. Advocate appearing for the State-Opp. Party and Mr. S. Das, learned counsel appearing for the Opp. Party Nos. 2 & 3. 3. The present writ petition has been filed inter alia with the following prayer:- “It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to: i) Admit the writ application. ii)Call for the record. iii) Issue a writ in the nature of mandamus or any other writ/writs, direction/directions directing the opposite parties more particularly the Opposite Party No. 3 & 4 to modify the office order dated 26.08.2022 under Annexure 7 and the pension payment order under Annexure-9 and direct the opposite parties to revise the scale of pay of the petitioner in terms of ORSP Rules, 2017 and disburse the monthly pension on the basis of the last pay drawn in terms of Rule 47 of the Orissa Civil Service (Pension) Rules, 1992 within a stipulated time to be fixed by this Hon’ble Court. iv) And/or pass such other order/orders, direction/directions as this Hon’ble Court may deems fit and proper for the ends of justice. And for the said act of kindness, the petitioner as in duty bound shall ever pray.” 4. It is contended that Petitioner while continuing in the establishment of
Decision
is disposed of, Petitioner is not eligible to get the provisional pension and his pensionary benefits basing on the scale of pay allowed in his favour vide order dtd.27.06.2009. The stand taken in para 6 of the counter affidavit so filed by the University reads as follows:- Page 7 of 12 // 8 // “6. That in reply to the averments made in Para-1 of the Writ Petition, it is humbly submitted that, the Petitioner in the Writ Petition has stated the facts alleging the illegalities committed by the opposite parties in not calculating and fixing the amount of pension as per Rule-47 of the Orissa Civil Service (Pension) Rules-1992. The alleged allegations are absolutely baseless and without any substance and devoid of merit. In this context, it is humbly submitted that the pension scheme was implemented in respect of OUAT employees with effect from 01.04.1985. Since then, the retired employees are enjoying pensionary benefits. Keeping in view Rule-65 of OCS (Pension) Rules-1992 as adopted by virtue Statute-37 of OUAT Employees’ (Conditions of Service) Statutes-1989 and in pursuance to the Notification No. 4162/UAT dated 15.03.2019, the application for sanction of provisional pension of the petitioner dated 18.03.2020 was considered, and accordingly the provisional pension of the petitioner was sanctioned vide Office Order No.Pen-1-58/19-14384/UAT dt.26.08.2022. His Provisional pension has been determined on the qualifying service up to the date of compulsory retirement i.e.22.04.2019 (A.N) excluding the period of suspension period and emoluments up to the date 19.05.2009 i.e. last pay drawn in the post of Asst. Engineer as the appointment of Sri Pradhan as Director of Physical Plants (DPP), OUAT is subjudice before the Hon’ble Apex Court of India (SLP (C) No. 14671/09 which has been subsequently converted to Civil Appeal No- 8513 of 2009). The copy of the relevant portion of the OUAT Employees (Condition of Service) Statutes, 1989 is annexed herewith as Annexure-A/3. The copy of the relevant portion of the OCS (Pension) Rules, 1992 is annexed herewith as Annexure-B/3. The copy of the Notification No- 4162/UAT dated 15.03.2019 is annexed herewith as Annexure-C/3. The copy of the Application of the petitioner dated 18.03.2020 is annexed herewith as Annexure-D/3. The copy of the Office Order No. PEN-1-58/19-14384/UAT dated 26.08.2022 is annexed herewith as Annexure-E/3. The copy of the Order dated 19.10.2009 passed by the Hon’ble Apex Court in SLP No- 14671 of 2009/ Civil Appeal No- 8513 of 2009 is annexed herewith as Annexure-F/3. Further, it is to mention here that the petitioner was drawing his pay as Asst. Engineer in the scale of Pay Rs.9300-34,800/- + Grade Pay Rs.4600/- at pay of Rs.17,310/-+ Grade Pay Rs.4600/-on dated 19.05.2009. The qualifying Page 8 of 12 // 9 // period of service excluding the period of suspension period up to the date of his Compulsory retirement i.e. dt.22.04.2019 is 30 years 09 months and 15 days. Basing upon such emoluments and qualifying period of service up to the date of compulsory retirement, the provisional pension of the petitioner has been considered in the following manner. ‰ x 21910 x 50/50 = Rs. 10,955/- per month plus Temporary Increase (T.I) (Under 6th pay commission) Rs.10,955 x 2.57 = Rs. 28,155/- per month plus T.I as admissible w.e.f 23.04.2019 (Under 7th pay commission) The existing provisional pension has been determined by multiplying a factor of 2.57 under 7th pay commission basing on the provisional pension so arrived on the last pay drawn in the strength of Asst. Engineer as on 19.05.2009 under 6th pay commission. Thus, the pension fixed @ 28, 155 /- + T.I per months is purely provisional subject to revision as per the orders of Hon’ble Supreme Court of India in Civil Appeal No-8513/2009 in the matter of Chancellor, OUAT & another Vrs- P.K. Pradhan which is subjudice. Moreover the fixation of pension arrived at is on the higher side than that of, if it would have been fixed under section 65 of the OCS (Pension) Rule 1992. The copy of the section 65 of the OCS (Pension) Rule 1992 is annexed herewith as Annexure- G/3.” 5.3. With regard to the claim of the Petitioner to grant pension in terms of Rule 47 of the Rules, it is contended that since the order issued by the University in making the Petitioner to retire on the ground of compulsory retirement is the subject matter of challenge in W.P.(C) No. 13564 of 2019, in view of the provisions contained under Rule 66 of OCS (Pension) Rules, 1992, Petitioner is not eligible to get the benefit of final pension and other pensionary benefits. Rule 66 of the Rules reads as follows:- “66. Grant of provisional pension where departmental or Judicial proceeding is pending - (1) Where departmental or judicial proceedings are pending in respect of Government servant on the date of his Page 9 of 12 // 10 // retirement, referred to in, he shall be paid a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant; or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension. (2) No gratuity shall be paid to the Government servant until the conclusion of the Departmental or judicial proceedings and issue of final order thereon: Provided that where departmental proceedings have been instituted under Rule 16 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 for imposing any of the penalties specified in Clauses (i), (ii), and (iii-A) of Rule 13 of the said rules, the payment of gratuity shall be authorised to be paid to the Government servant. (3) The provisional pension shall be authorised during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceeding, final orders are passed by the competent authority. (4) The authority competent to sanction pension shall be the authority competent to sanction provisional pension. (5) Payment of provisional pension made under Sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally-sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that basing on the order passed by Page 10 of 12 // 11 // this Court on 25.09.2008 in W.P.(C) No. 2714 of 2007 vide notification dtd.19.05.2009, the University appointed the Petitioner as against the post of Director, Physical Plants w.e.f. the date he takes over the charge. As further found after assuming the charge of Director, Physical Plants vide order dtd.27.06.2009 under Annexure-5 Petitioner was allowed with the scale of pay of Rs.15,600/- - Rs. 39,100/- with Grade Pay of Rs.6,600/-. 6.1 It is not disputed that while in receipt of such scale of pay as against the post of Director, Physical Plants, Petitioner was made to retire on the ground of compulsory retirement w.e.f.22.04.2019 vide office order dtd.29.05.2019 under Annexure-6 series. However, it is found that after such retirement of the Petitioner w.e.f.22.04.2019 while sanctioning the provisional pension, the scale of pay applicable to the post of Asst. Engineer and the pay drawn by the Petitioner in the said scale of pay with basic pay of Rs.17,310/- with G.P. of Rs.4600/- as on 19.05.2009 subsequently revised under 7th CPC, has been taken into consideration. 6.2. Since while implementing the order passed in W.P.(C) No. 2714 of 2007, during pendency of the matter before the Apex Court, Petitioner was appointed as against the post of Director, Physical Plants vide order dtd.19.05.2009 and his pay was also fixed accordingly in the said post vide order dtd.27.06.2009, it is the view of this Court that pendency of the appeal before the Apex court is not a ground not to extend the benefit of provisional pension in the scale of pay so allowed in his favour vide order dtd.27.06.2009. The stand taken by the University that because of the pendency of the appeal before the Apex Court, the scale of pay applicable to the post of Asst. Engineer was taken into consideration while sanctioning the provisional pension is not acceptable to this Court. Page 11 of 12 // 12 // 6.3. Since during pendency of the appeal, the order passed by this Court has been implemented by appointing the Petitioner as against the post of Director, Physical Plants and the scale of pay as applicable to the said post was also sanctioned vide order dt.27.06.2009, it is the view of this Court that the said scale of pay with subsequent revision under 7th CPC should have been taken into consideration while sanctioning the provisional pension vide order dtd.26.08.2022 under Annexure-7. This Court accordingly directs the University to release the provisional pension taking into account the scale of pay allowed in his favour vide office order dtd.27.06.2009 and the last pay so drawn with revision of the scale under 7th CPC. However, such extension of the benefits will be subject to final outcome of Civil Appeal No. 8513 of 2009. Petitioner will give an undertaking that he will refund the excess amount drawn, if any, if the University succeeds in the Civil Appeal. After receipt of such undertaking, the benefit be extended. 6.4. In view of the pendency of W.P.(C) No. 13564 of 2019 and the provision contained under Rule 66 of the Rules, it is the view of this Court that Petitioner is not entitled to get the benefit of final pension and gratuity. It is open for the Petitioner to pursue the writ petition. 7. The writ petition accordingly stands disposed of. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 23rd July, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jul-2025 18:24:21 Page 12 of 12